Tulsa Law Review Volume 24 Issue 4 Mineral Law Symposium Summer 1989 The Evolution of the Essential Facilities Doctrine and Its Application to the Deregulation of the Natural Gas Industry David M. Podell Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation David M. Podell, The Evolution of the Essential Facilities Doctrine and Its Application to the Deregulation of the Natural Gas Industry, 24 Tulsa L. J. 605 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol24/iss4/3 This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Podell: The Evolution of the Essential Facilities Doctrine and Its Applic THE EVOLUTION OF THE ESSENTIAL FACILITIES DOCTRINE AND ITS APPLICATION TO THE DEREGULATION OF THE NATURAL GAS INDUSTRY David M. Podel* I. INTRODUCTION In 1887 Congress created the Interstate Commerce Commission (ICC), the nation's first federal regulatory agency. Three years later Congress passed the Sherman Act' reflecting the legislative judgment that "competition is the best method of allocating resources in a free market."2 For one hundred years federal antitrust law has coexisted with the public policy favoring the regulation of certain industries. Within the last fifteen years, however, situations have arisen as a result of the federal government's movement toward deregulation where the two regimes of competition and regulation have collided head-on within a single market. At times that market has been dominated by affiliates or subsidiaries of a single firm which traditionally had been regulated as a public utility. Courts have responded to this new phenomenon by expanding and applying the essential facilities doctrine under section 2 of the Sherman Act. The doctrine, however, has been applied not only to single-firm natural monopolies that historically were considered public utilities, but also to single-firm monopolies that conceivably could have acquired their * B.A., 1985, Brandeis University; J.D., 1988, Emory University School of Law. Intern, Of- fice of Enforcement, Office of the General Counsel, Federal Energy Regulatory Commission (FERC), Summer 1987. Currently residing in Rockville, Maryland. The author thanks the following persons for their assistance: Professor Thomas Arthur, Emory University School of Law, Atlanta, Georgia; John Sharp, Attorney, Director of Congressional Af- fairs & Counsel, Natural Gas Supply Assoc., Washington, D.C.; Elizabeth Head, General Counsel, Columbia University; and Elizabeth Hitchcock Hayashi, Attorney, Curtis, Bamburg, Oetting, Brackman & Crossen, St. Louis, Missouri. 1. Codified as amended at 15 U.S.C. §§ 1-7 (1982). 2. National Soc'y of Professional Eng'rs v. United States, 435 U.S. 679, 695 (1978). Published by TU Law Digital Commons, 1988 1 Tulsa Law Review, Vol. 24 [1988], Iss. 4, Art. 3 TULSA LAW JOURNAL [Vol. 24:605 market dominance by superior skill and intelligence.' A violation of section 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power, as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.4 The essential facilities doctrine provides that when market dominance is acquired by monopolistic conduct, a re- source vital to competitive viability cannot be withheld from a competitor.' What is troubling about this proliferation of essential facilities cases under section 2 is that the Supreme Court has never ruled directly whether the essential facilities doctrine applies under section 2 analysis. In Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,6 the Supreme Court's most recent opportunity to address this issue, the Court evaded the issue by concluding in the last footnote of the opinion that in this case it was "unnecessary to consider the possible relevance of the essential facilities doctrine."7 Application of the essential facilities doctrine to natural gas pipe- lines under section 2 of the Sherman Act is consistent with the original intent of the Sherman Act and should be affirmed by the Supreme Court. Aspen and its progeny, which are cases dealing with monopoly power achieved through superior product, business acumen, or historic acci- dent, however, should be rejected. 3. The essential facilities doctrine has touched even the research and citations used in this Article. West Publishing operates the WESTLAW database and has acquired a monopoly in the publication of court opinions through the West reporter system. As a result of litigation, Mead Data, who operates the competing LEXIS database, now has its own citation system. See Mead Data Cent. v. West Publishing, 679 F. Supp. 1455 (S.D. Ohio 1987). Mead alleged that West Pub- lishing enhanced its monopoly power in legal materials by denying Mead access to the West reporter system which is an essential facility. Id. at 1460. 4. United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966). The text of § 2 states: Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding one million dollars if a corpora- tion; or, if any other person, one hundred thousand dollars, or by imprisonment not ex- ceeding three years, or by both said punishments, in the discretion of the court. 15 U.S.C. § 2 (1982). 5. On the other hand, an inventor or holder of a patent not engaged in predatory acts can restrict access to an essential facility to recover a reasonable return on his investment in research and development. See infra note 49 and accompanying text. 6. 472 U.S. 585 (1985). 7. Id. at 611 n.44. https://digitalcommons.law.utulsa.edu/tlr/vol24/iss4/3 2 Podell: The Evolution of the Essential Facilities Doctrine and Its Applic 1989] THE ESSENTIAL FACILITIES DOCTRINE II. BACKGROUND A. Rationalesfor Regulating Industries There are two distinguishable rationales for regulating certain indus- tries. One theory is that competition simply does not work in every industry. The other theory is that some industries are natural monopo- lies based on the characteristics of the industry. Congress formed the ICC to bring the nation's railroads under fed- eral regulation based on the belief that competition does not work in every industry. The domestic airline market prior to 1978 was also regu- lated based on the general perception that public policies favoring relia- ble service to most areas and the best possible safety practices simply were not weighed by the free market to the same degree that they were weighed by society.' The argument that competition does not work has appeared regu- larly when vigorous competition has threatened the continued existence of small businesses, a symbol of the vitality of the American en- trepreneurial spirit. Economists, however, have shown that competition is the best method of allocating resources in a free market. The problem is that externalities distort the free market.9 As demonstrated during the last ten years since the deregulation of the airline industry, and in inno- vative approaches to regulation of otherwise competitive industries, the free market can be regulated just enough so that it is forced to weigh public policy concerns to the same degree that these concerns are weighed by society. Regulating an industry because competition does not work is no longer a policy option within the political mainstream. While federal antitrust law historically tolerated such an argument under the Sherman Act,10 modern courts have taken the position that a defense based on the assumption that competition itself is unreasonable is totally inconsistent with the Sherman Act's endorsement of competition as the best method 8. See, eg., T. MORGAN, J. HARRISON & P. VERKUIL, CASES AND MATERIALS ON ECO- NOMIC REGULATION OF BUSINESS 21-23 (2d ed. 1985) (background on the movement toward deregulation). 9. See, e-g., A. POLINSKY, AN INTRODUCTION TO LAW AND ECONOMICS (1983). 10. See Arthur, Farewell to the Sea of Doubt: Jettisoningthe ConstitutionalSherman Act, 74 CALIF. L. REv. 263, 302-08 (1986). For example, in Appalachian Coals, Inc. v. United States, 288 U.S. 344 (1933), the Supreme Court upheld the legality of a cartel thinly disguised as a joint selling agency. This reflected the Court's view that the public interest favored experimentation to end the Depression. Chief Justice Hughes found the Sherman Act to be a "charter of freedom" that neces- sarily had the "generality and adaptability" that had been "found to be desirable in constitutional provisions." Id. at 306-08. Published by TU Law Digital Commons, 1988 3 Tulsa Law Review, Vol. 24 [1988], Iss. 4, Art. 3 TULSA LAW JOURNAL [Vol. 24:605 of allocating resources in a free market." A completely different theory of regulation is based on the fact that some industries are natural monopolies. The theory is typically applied to industries that are heavily capital intensive and face continually de- creasing long run average costs. Heavy capital expenditures are gener- ally required to construct and maintain an infrastructure. In these instances, public policy is based on the belief that it is in society's best interest for one firm, such as a public utility, to exploit economies of scale and avoid duplication of an identical infrastructure, subject, however, to direct regulation that prevents the firm from reaping monopoly profits.12 Until recently natural monopolies were believed to exist in long distance and local telecommunications; the generation, transmission, and local distribution of electricity; and in the production, transportation via pipeline, and local distribution of oil and natural gas.13 A changing approach to regulation and new technology in recent years, however, have led to deregulation of many of these industries.